Sims v. Lafayette Parish School Board

RULING RE MOTION FOR PROTECTIVE ORDER FILED JANUARY 2, 1992 PAMELA A. TYNES, United States Magistrate Judge. On January 2, 1992, the plaintiffs filed a Motion for Protective Order and for Expedited Hearing. The defendants filed a Memorandum in Opposition on January 3, 1992 and a conference was conducted in chambers on January 10, 1992 commencing at 1:45 p.m. to address the motion. Participating counsel included: Donna Brown, representing the plaintiffs; Michael Juneau, representing the defendants, School Board of Lafayette Parish, Russell Baudoin, Dana Schmersahl and Audrey Milo; and Greg Moroux, representing the City of Lafayette. The ruling entered at the conference, and reasons assigned therefor, are memorialized infra. In a nutshell, the dispute presented was whether the defendants represented by Michael Juneau were entitled to obtain—(1) copies of statements given by the defendants, Dana Schmersahl, Russell Baudoin and Audrey Milo; and (2) copies of the statements given by two non-party witnesses, Louis Benjamin and Jerry Caillier, prior to their depositions which are now scheduled to commence on January 14, 1992. First the 1970 Amendments to the discovery rules make it clear that both parties and non-parties are entitled to secure production of any statements they have given without any special showing. F.R.Civ.P. 26(b)(3) provides, in pertinent part, as follows: “A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion Of course, the crucial issue presented by the plaintiffs’ motion is not whether, but when the deponents scheduled for January 14, 1992 are entitled to obtain a copy of their statements. This Court recognizes that there are cases where courts have held that production of a statement may be delayed until after a deposition has been taken. Nevertheless, the controlling authorities indicate that such a procedure should only be followed “in appropriate cases.” [339] Specifically, the Advisory Committee Note to Rule 26(b)(3) provides, in pertinent part, as follows: “In appropriate cases, the court may order a party to be deposed before his statement is produced.” (citations omitted) Furthermore, in the only Fifth Circuit authority cited by counsel, and indeed, the only Fifth Circuit authority on point known to the Court, Miles v. Motor Vessel Mississippi Queen, 753 F.2d 1349 (5th Cir.1985), Judge Rubin held in dictum that a trial court has some latitude in determining the time when statements must be produced. It is notable, however, that the trial judge in Miles suspected that the plaintiff was guilty of duplicity and had given the following reasons for his refusal to order production of the plaintiffs statement prior to trial: “Because it was apparent to me that, or it was likely that, the plaintiff was not putting everything on the table.” 753 F.2d at 1351. Thus, both the Advisory Committee Notes and the Fifth Circuit anticipate a showing of cause before a court may delay production of a statement. In the case at hand, the plaintiffs have offered no facts tending to establish cause which would justify a delay in the production of statements. The only basis for the plaintiffs’ motion is the contention that a delay in production of statements would protect the impeachment value of the prior statements. If preservation of impeachment value were a valid reason for delaying production of statements, then production would be delayed to a post-deposition point in every case. The adoption of such a rule would violate the rationale underlying the 1970 amendments to Rule 26(b)(3). The amendments to the rule seem to have been based on a general feeling that it is not fair to a witness to require him to testify without being allowed to see what he has said in a statement previously given. The Notes of Advisory Committee to Rule 26(b)(3), entitled PARTY’S RIGHT TO OWN STATEMENT, explain, in pertinent part: “Ordinarily, a party gives a statement without insisting on a copy because he does not yet have a lawyer and does not understand the legal consequences of his actions. Thus, the statement is given at a time when he functions at a disadvantage. Discrepancies between his trial testimony and earlier statement may result from lapse of memory or ordinary inaccuracy; a written statement produced for the first time at trial may give such discrepancies a prominence which they do not deserve.” Although the Notes make particular reference to the right to review a statement before trial, the same adverse result may obtain if a person is compelled to give sworn deposition testimony without reviewing a prior statement. Accordingly, this Court follows the general rule of ordering pre-deposition production of statements absent a showing of cause for post-deposition production. This general rule applies equally to plaintiffs and defendants. For the foregoing reasons, the Motion for Protective Order was DENIED with respect to the statements of the party defendants and plaintiffs’ counsel was ORDERED to produce copies of the parties’ statements to defense counsel before 5:00 p.m. on January 10, 1992. The Motion for Protective Order was GRANTED IN PART with respect to the non-party statements to the extent that the non-party statements need not be produced to defense counsel. Plaintiffs’ counsel was, however, ORDERED to provide copies of the statements taken of the non-party deponents to the deponents immediately following receipt of their personal requests for same. Finally, after further consideration, I find that an award of Rule 37(a)(4) fees and expenses should not be assessed in connection with the instant motion. The Clerk of Court is directed to provide a copy of this ruling to all counsel by means of facsimile transmission immediately.